Application of RONSARD MAZILE for the removal of Betty Cross as a member of the Board of Education of the Hempstead Union Free School District and for a stay order of certain actions of the board of education.

Decision No. 15,356

(January 24, 2006)

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondents, Gilbert Henoch and Joseph E. Macy, Esqs., of counsel

MILLS, Commissioner.--Petitioner seeks the removal of Betty Cross ("Cross") from office as a member of the Board of Education of the Hempstead Union Free School District ("board"). Petitioner also seeks a stay of certain actions of the board taken on October 21 and 26, 2004, and other subsequent meetings. The application must be denied.

On March 23, 2004, petitioner attended a meeting of the board. The meeting commenced at 5:30 p.m., at which time the board apparently voted to go into executive session. Petitioner claims that after waiting for one hour, he asked when the public would be allowed to attend the board meeting. Petitioner asserts that he was invited into the room so a board member could answer his question. Petitioner further claims that, upon entering the room, Cross shouted at him and assaulted him by hitting him in the chest with her walking cane, causing injury for which he immediately sought medical attention.

Petitioner seeks Cross's removal from office based on her alleged "act of assault and hostility" at the March 23, 2004 board meeting. As part of his application, petitioner also sought a stay order of certain actions approved by a majority of the board at meetings held on October 21 and 26, 2004, "and all other subsequent meetings until this stay order is granted." On December 3, 2004, petitioner's request for a stay was denied.

Cross asserts that the application is untimely, and that petitioner has failed to establish any basis for her removal. Cross also maintains that she is entitled to a certificate of good faith pursuant to Education Law �3811.

Initially, I note that petitioner's reply is untimely and contains material that should have been submitted with his petition. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR �275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.). Cross served her answer by mail on November 24, 2004. Thus, petitioner's reply should have been served no later than December 8, 2004. Petitioner served his reply on December 11, 2004. The reply, therefore, is untimely.

The reply also contains material that goes beyond the scope permitted by the Commissioner's regulations. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id . 109, Decision No. 14,188). Petitioner's reply contains new material and exhibits in support of allegations set forth in his petition that should have been submitted with the petition. For the above-noted reasons, petitioner's reply has not been considered as part of the record in this appeal.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). The 30-day limitation period also applies to a removal application made pursuant to Education Law �306 (8 NYCRR �277.1; Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Bean, 42 id. 171, Decision No. 14,810).

The incident on which petitioner bases his application occurred on March 23, 2004. Petitioner did not serve this application upon Cross until November 4, 2004 - more than seven months after the incident. Petitioner requests that I excuse the late filing of the appeal because in June 2004, he met with the board regarding the incident and expected the board to address the situation. He asserts that he never received an answer from the board.

I do not consider petitioner's explanation sufficient to excuse the late filing. Petitioner took no action for three months while he waited to meet with the board. Even after the June 2004 meeting, petitioner did not attempt to initiate a proceeding for an additional five months, notwithstanding the board's alleged failure to respond to him during that time. Moreover, this application does not challenge the board's alleged inaction in June 2004 but, instead, seeks review of Cross's alleged conduct in March 2004. In view of the fact that petitioner waited more than seven months before making this application, I find the application to be untimely (Application of Gabryel, 44 Ed Dept Rep 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050).

The notice of petition is also defective. The Commissioner's regulations require that the notice accompanying a removal application specifically advise the school officer that the application is being made for his or her removal from office (8 NYCRR �277.1[b]). In this case, petitioner failed to give such notice and, instead, used the notice prescribed under �275.11(a) for appeals brought pursuant to Education Law �310. A notice of petition which fails to contain the language required by the Commissioner's regulation is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Parisi, 42 Ed Dept Rep 400, Decision No. 14,893; Application of Knapp, 41 id. 41, Decision No. 14,608; Appeal of Khalid, 40 id. 621, Decision No. 14,570).

Moreover, the application is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). According to records in possession of the State Education Department, Cross's term of office expired on June 30, 2005 and she no longer is a member of the board. Accordingly, petitioner's request for Cross's removal is academic.

In his request for relief, petitioner seeks a stay of certain board action taken at meetings on October 21 and 26, 2004 "and all other subsequent meetings until the STAY ORDER is granted." Petitioner's request for a stay was denied on December 3, 2004. Because petitioner seeks no other relief with respect to the board's actions, beyond the stay request, that portion of petitioner's appeal is also moot.

Although the application is denied for the foregoing reasons, one administrative matter remains. Cross has requested that I grant her a certificate of good faith pursuant to Education Law �3811(1). Such certification is solely for the purpose of authorizing the board to indemnify Cross for legal fees and expenses incurred defending a proceeding arising out of the exercise of her powers or performance of her duties as a board member. It is appropriate to issue such certification unless it is established on the record that the requesting board member or trustee acted in bad faith (Application of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Application of Zimmerman, et al., 42 id. 205, Decision No. 14,823). On the evidence in the record before me, I am constrained to issue the �3811(1) certification, with the admonition that it is in no way intended to be construed as approval of the alleged actions.

THE APPLICATION IS DENIED.

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